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holding that the trial court did not abuse its discretion "in refusing to accede to [a codefendant's] conditional offer to present exculpatory testimony"
Summary of this case from United States v. SmithOpinion
Nos. 76-2692, 76-2380.
January 19, 1978. Rehearing Denied March 6, 1978.
Benjamin Wyatt, Jr. (argued), Beverly Hills, Cal., for appellant.
Mark H. Bonner, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.
Appeals from the United States District Court for the Central District of California.
Appellants Dixon and Gay, together with co-defendant Lonzo L. Harris, not a party to these appeals, were charged in a three count indictment with conspiring to violate and violating laws regulating Schedule I substances. 21 U.S.C. § 846, 841(a)(1), and 18 U.S.C. § 2. Count I charged all three defendants with conspiracy to possess heroin with intent to distribute it. Count II charged Dixon and Harris with possession of heroin with intent to distribute the substance. Count III charged Dixon and Harris with distribution of heroin and charged Gay with aiding and abetting in the distribution thereof. Following a joint jury trial, all three defendants were convicted as charged. Dixon and Gay now pursue this appeal, contending, inter alia, that their respective motions for a separate trial were improperly denied. We affirm.
I
On the morning of the day set for trial, Dixon, later joined by Gay, moved for a severance. Dixon's motion was founded upon the representation that, if a severance were granted, Harris would exculpate him. The motion was preceded by notice thereof, to which was attached a brief affidavit of Dixon's attorney. As requested in the affidavit of Dixon's attorney, the court inquired of Harris' counsel whether his client intended to testify. Counsel responded that, if the cases were severed, Harris would indeed testify, but only if he were tried first. An extensive colloquy then ensued between the various counsel and the court in respect to Harris' conditional offer to testify. Pertinent portions of the colloquy are attached hereto as Appendix A. The court advised Harris' counsel that it was willing to impanel two juries, but, in that event, the separate trial of Dixon would precede the trial of Harris. The court reminded Harris' counsel that if, under those circumstances, Harris testified in behalf of Dixon, Harris would thereby forfeit his fifth amendment privilege as to his own later trial. Harris' counsel replied that he, understanding the court's point, would advise Harris not to testify unless, as proposed, the court scheduled his client's trial first. The court rejected the conditional offer to testify and denied the motion to sever.
"1. I am an attorney at law licensed to practice before all the courts of the State of California and am the attorney for defendant, SAM JUD DIXON, in the within matter.
"2. At the time of the arraignment of the defendants in this matter, the defendant, LONZO L. HARRIS, stated that he would be willing to testify on behalf of defendant, DIXON, and that Mr. DIXON was not involved in the narcotic transaction. Affiant would respectfully request this court to inquire from MR. HARRIS and/or his attorney if this is still his position in this matter."
"Affiant says nothing further."
The transcript of the arraignment of the defendants is not contained in the record before us, but we accept the representation concerning Harris' prior statement as correct, since no question about it was ever raised. This makes the moving defendants' foundation broadly similar to that in United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) and United States v. Shuford, 454 F.2d 772 (4th Cir. 1971). Cases in our Circuit and elsewhere have announced strict requirements for affidavits supporting severance motions. Since neither the trial court nor the Government took exception to the affidavit as sufficient foundation, we accept it for purposes of this case only, the error, if any, being favorable to the defendants.
We do not assess the validity of the court's statement if correctly transcribed, that if Harris offered to testify at a co-defendant's prior trial, "he will or can be called by the Government at his own trial" (whatever was meant by "called") or, for that matter, upon any other remarks made by the judge in this colloquy. See Appendix A infra. Our function in this case is to review, within prescribed limits, what the court did, not what it said. We expressly refrain from ruling broadly on what Harris' position vis-a-vis the Fifth Amendment would have been if he had testified in a prior trial of a co-defendant in the absence of such an express waiver. Nor do we rule on the effect of such a waiver if a retraction were attempted.
When proceedings resumed in the afternoon session, counsel for Gay also moved for a severance based on anticipated exculpatory testimony from Harris. Discussion followed between the court and counsel for all three co-defendants, the substance of which paralleled the morning colloquy summarized above. The court denied both Gay's motion and Dixon's renewed motion to sever after confirmation from Harris' counsel that Harris would not testify unless tried prior to his co-defendants. See Appendix A infra.
II
In United States v. Rice, 550 F.2d 1364, 1370 (5th Cir. 1977), the Fifth Circuit reviewed a severance problem similar to that before us now. There a motion for a severance, filed by a defendant named Massler, stated:
"In the instant case, Pedro Alvarez has stated, and he will so depose if requested, that if called at a separate trial where he will not need to exercise a Fifth Amendment privilege, he will and can give evidence that will exonerate Jerrold Massler completely. If tried jointly, Mr. Alvarez will, of course, not testify."
Because the motion did not indicate precisely to what Alvarez would testify, and because it was contingent upon Alvarez not being required to testify to anything which might have tended to incriminate him, the denial of the motion was held not to constitute error. The court, however, neither cited precedent nor elaborated on reasons in support of its holding. Nevertheless, we agree with the Rice court that a trial court may, in proper circumstances and in the exercise of its broad discretion in these matters, reject a severance motion based on a conditional offer to give exculpatory testimony. Our judgment follows from certain firmly established legal principles.
A co-defendant's conditional offer to testify only if nine counts against him were dismissed was listed among grounds for denying a severance without separate discussion in United States v. Larios-Montes, 500 F.2d 941 (9th Cir. 1974), cert. denied, 422 U.S. 1057, 95 S.Ct. 2681, 45 L.Ed.2d 709 (1975). In a sense, the present case is the converse of United States v. Frazier, 394 F.2d 258 (4th Cir. 1968), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). There a defendant complained of the refusal to grant a severance on the ground that a co-defendant, if freed of Fifth Amendment problems presented by a joint trial, might have given exculpatory evidence. The court, in affirming, observed that the Fifth Amendment problems would remain unless the moving defendant "might be lucky enough" to draw a trial date subsequent to the exculpating witness and the latter were convicted. "On such gambles," the court said, "proper criminal procedure, for severance, cannot be based." Id. at 261. In the present case, Harris was unwilling to gamble so, demanding assurance that he be tried first.
Preliminary, we note that a criminal defendant's Fifth Amendment privilege against self-incrimination is composed of two distinct aspects: first, the privilege not to be summoned to the witness stand, and, second, the privilege not to answer questions to which the answers might be incriminating. For good or ill, the settled law of our Circuit is that in a joint trial a defendant may not call a co-defendant to the witness stand. United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. McKinney, 453 F.2d 1221 (9th Cir. 1972); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971), following Bowles v. United States, 142 U.S.App. D.C. 26, 439 F.2d 536 (1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). The Supreme Court apparently has never specifically issued an opinion on the point. But cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The same rule may apply to any witness who has indicated his intention to invoke the Fifth Amendment, Bowles v. United States, supra, but our court's rule appears to be contra. United States v. Bautista, 509 F.2d 675, 678 (9th Cir. 1975), cert. denied, Monsivais v. United States, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Although these rules arguably may be viewed as raising a serious conflict between the Fifth and Sixth Amendments, the uniform response to this constitutional tension has been that, irrespective of the Sixth Amendment, a defendant has no absolute right to elicit testimony from any witness, co-defendant or not, whom he may desire. Indeed, the witness may be unavailable to him for many reasons, e. g., death, incapacity, presence outside the range of legal process, and commonly, the refusal of the witness to testify pursuant to a claim of privilege, not the least important of which arises from the Fifth Amendment. Royal v. State of Maryland, 529 F.2d 1280 (4th Cir. 1976); United States v. Murphy, 413 F.2d 1129 (6th Cir. 1969), cert. denied, 396 U.S. 896, 90 S.Ct. 195, 24 L.Ed.2d 174 (1969); Myers v. Frye, 401 F.2d 18 (7th Cir. 1968).
Moreover, co-defendants jointly charged are, prima facie, to be jointly tried. Fed.R.Crim.P. 8. The ordering of separate trials requires unusual circumstances and the power to do so rests within the broad discretion of the District Court as an aspect of its inherent right and duty to manage its own calendar. Fed.R.Crim.P. 14; Opper v. United States, 384 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) (a severance is not required until a joint trial will be "manifestly prejudicial."); United States v. Kaplan, 554 F.2d 958, 965-67 (9th Cir. 1977); United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971) (citing numerous cases). The "great mass" of cases refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant. See 1 C. White, Federal Practice and Procedure: Criminal § 227, n. 13 and cases cited therein. The same author states: "Motions for severance so that a defendant may be able to call a codefendant to the stand are usually denied." Id. § 225.
See also numerous cases cited infra. The well-nigh insoluble problems presented by the interaction of Rules 8 and 14 are discussed in Comment, 74 Yale L.J. 551 (1965).
The Notes of the Advisory Committee on Rule 14, as originally promulgated, state that a "severance . . . is entirely in the discretion of the [trial] court . . ." Anno., Fed.R.Crim.P. 14, 18 U.S.C.A. The bases for reversal have been variously described as "Abuse," "clear prejudice," "clear and affirmative showing of abuse," "clear showing of prejudice," and "positive showing of prejudice," see United States v. Olson, 504 F.2d 1222, 1224 (9th Cir. 1974); United States v. Pietras, 501 F.2d 182, 185 (8th Cir. 1974), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); United States v. Jenkins, 496 F.2d 57, 68 (2d Cir. 1974), cert. denied, Hall v. United States, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v. Bryant, 490 F.2d 1372, 1379 (5th Cir. 1974), cert. denied, Impson v. United States, 419 U.S. 832, 95 S.Ct. 57, 42 L.Ed.2d 58 (1975); Kane v. United States, 431 F.2d 172, 176 (8th Cir. 1970). Our own court has written:
"While Rule 14, Fed.R.Crim.P., permits a trial court to grant a severance where a joint trial would be prejudicial to a defendant, the decision to grant the severance is within the discretion of the court and ordinarily not subject to review."
Daut v. United States, 405 F.2d 312, 314 (9th Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971). Further, we have specified:
"The trial judge has great discretion in ruling on Rule 14 motions, and review on appeal is limited to whether `. . . the joint trial [was] so prejudicial . . as to require the exercise of that discretion in only one way, by ordering a separate trial . . .' Parker v. United States, 404 F.2d 1193, 1194 (9th Cir.), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969)."
United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir. 1975).
III
Mindful of the aforementioned principles, we cannot say in these appeals that the trial court abused its discretion in refusing to accede to Harris' conditional offer to present exculpatory testimony. The manifest purpose of the trial court was to insure that severance not be employed so as to grant to any of the defendants, including Harris, any benefits that they would not have enjoyed but for the joint indictment. The fairness of the court's intentions may be tested hypothetically. If there had not been a joint indictment, but rather separate indictments of each of the co-defendants, then several consequences might have followed. In the regular management of its calendar the court might well have scheduled the trial of Harris first. In that event, if Harris had voluntarily testified, then he either would have waived his privilege under the Fifth Amendment, or he would have been required to invoke it in the presence of the jury. Consequently, any testimony he did choose to give would have been admissible at a subsequent trial of his co-defendants.
While the law is somewhat confused on this issue, this proposition is apparently correct. In the leading case, Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), all members of the Court assumed that, absent the erroneous admission of illegal evidence that virtually compelled the defendant to testify at a previous trial, his prior testimony would have been admissible. See also United States v. Houp, 462 F.2d 1338 (8th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972). Cf. United States v. Snow, 521 F.2d 730, 734, n.2 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1975). The confusion is compounded by the promulgation of Fed.R.Evid. 804(b)(3). ("A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.")
If, alternatively, the other defendants had been tried first, again assuming separate indictments, they could, under the rule in this Circuit, have called Harris to the stand and compelled him to invoke the Fifth Amendment as any other third party witness could have been so compelled. Or, if Harris chose not to invoke the privilege, his testimony could have been introduced by the Government in his own subsequent trial. Of course, Dixon and Gay could have moved to delay their trial until Harris had been tried, but we know of no authority under which a trial court would be compelled to grant such a request.
Thus, by refusing to abide by Harris' conditional offer to testify at a separate trial, the trial court simply refused to allow any of the defendants to, as the court put it, "play games." See Appendix A. In effect, the court ruled that even if a severance were granted, the separate trials would be scheduled and conducted under the same rules and with the same consequences as if the defendants had been separately indicted. We decline to hold that this was an unreasonable view for the trial court to take, much less that the denial of the severance motions constituted such an abuse of discretion as to warrant reversal.
Appellants' reliance upon United States v. Vigil, 561 F.2d 1316 (9th Cir. 1977), is misplaced. In that case, Baca, who had been jointly indicted with Vigil for narcotics offenses, moved to have his trial severed on the ground that Vigil would give exculpatory testimony if called at a separate trial. The trial court denied the motion for severance. On appeal, this court found that denial to have been an abuse of discretion. We are not persuaded that the court in Vigil reached the question now before us. There the court was concerned whether or not a severance should have been granted at all. Here, the trial court was willing to grant a severance, but was confronted with a further demand by the putative co-defendant witness that his trial be scheduled first. Consequently, unlike Vigil, where the offer to testify was unconditional, we are faced with an offer to testify expressly conditioned on a demand that the order of the trials be designated in a particular manner. Moreover, in Vigil the prejudice of a joint trial was manifest. The appellants here apparently ignored other potentially exculpatory evidence. The facts in the present case more closely resemble those of United States v. Rice, supra, where the court affirmed the denial of a motion for severance which was based on a similar conditional offer by a co-defendant to testify.
We put aside a suggestion that may be implicit in our decision, as it has been made explicit in a similar case. This is that a severed co-defendant, following his own trial, may be more inclined to "throw a bone," United States v. Frazier, 394 F.2d 258, 261 (4th Cir. 1968), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968), to his co-defendants once his own case has been disposed of and he has nothing to lose by testifying. We are assuming for present purposes that Harris' testimony, in any stage of proceedings, would have been truthful.
In support of Dixon's motion for severance, counsel represented to the court that he had a document from the files of the United States Attorney recording an interview with an informant, in which the informant allegedly reported that "Dixon told Harris that he didn't want anything to do with the deal. That it was Lonzo's." At this point, the trial judge observed that he assumed the informant would be available to testify. No one contradicted or corrected this assumption. See Appendix A infra. Yet counsel for neither Dixon nor Gay sought to call the informant despite the unavailability of Harris' testimony. See United States v. Kaplan, supra, at 965-67. The trial court was entitled to factor the existence of the informant into his evaluation of the extent to which Dixon and Gay might be prejudiced by the absence of Harris' testimony. See United States v. Rice, supra, 550 F.2d, at 1369.
We mention the existence of the informant only to indicate that other potentially exculpatory evidence may have been available.
We mean in no way suggest that trial courts should, in all cases, reject an offer of a co-defendant witness to provide exculpatory testimony conditioned on a separate trial prior to that of the movant. Indeed, there is no question but that the purpose of a severance is more fully implemented when the co-defendant witness is tried first, and consequently is not deterred from providing exculpatory testimony by the prospect of forfeiting his Fifth Amendment privilege. Conversely, in circumstances wherein the trial court would abuse its discretion by not granting a severance, it might well be error for the court to grant a severance in name only while still requiring that the co-defendant witness offering exculpatory testimony be tried after the movant. Granting a severance in this form would be tantamount to denying the motion to sever. Such, however, is not the case here. When, as here, the trial court acts appropriately within its discretion in denying the motion altogether, we cannot say that it was error to require, as a condition for granting the severance, that the movant's trial be conducted in advance of that of a co-defendant witness offering conditionally to provide exculpatory testimony. We are not persuaded that the appellants were subjected to substantial injustice by the challenged ruling of the trial court.
See United States v. Echeles, supra, 352 F.2d at 898, wherein the Government contended, inter alia, that the defendant's position in support of his motion to sever indulged in the speculative assumption that the anticipated co-defendant witness would be tried before the defendant. To this argument the court replied: "As for . . . [this] `assumption' we do not feel it would have been egregious had the trial judge, after granting the motion for separate trial, also directed the Government to proceed first with the case against . . . [the co-defendant witness]." See also United States v. Frazier, supra note 3.
There is no merit in the appellants' contention that an unlawful search and seizure occurred. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
The judgments of conviction must be, and they hereby are,
AFFIRMED.